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Divorce Petition No. 1 of 1967, decided on 6th February 1968.

, Ss. 32, 35, 36 & 45‑Provisions of Act bear close resemblance to English law relating to matrimonial causes (i.e., Matrimonial Causes Acts of 1857, 1937 & 1950)‑Previous suit by husband for restitution of conjugal rights under S. 36 dismissed‑Second suit for divorce under S. 32 on ground of wife's desertion‑Several grounds taken by plaintiff same on which he had brought his earlier suit‑Wife (defendant) pleading decision, in earlier suit, operating as estoppel by res judicata‑Question whether and to what extent rule embodied in S.11, C. P. C., applicable‑Civil Procedure Code (V of 1908), S. 11.

A Parsi male filed a suit for restitution of conjugal rights under section 36 of the Parsi Marriage and Divorce Act, 1936. This suit was dismissed. Thereafter he filed another suit for divorce against his wife under section 32 of the Act on the ground that she had deserted him. In the second suit several of the grounds taken by the plaintiff were the same on which he had brought his earlier suit for the restitution of the conjugal rights. The wife reiterated the stand she had adopted in the earlier suit and further pleaded that the decision in the earlier proceedings operated as estoppel by res judicata. On the question, therefore, whether the decision in the previous suit operated as an estoppel by res judicata in the second suit for divorce so as to preclude the plaintiff from agitating anew the same grounds on which his earlier suit for restitution of conjugal rights was based:

Held, res judicata broadly speaking means the conclusiveness of a judgment as to the points decided in every subsequent litigation between the parties. This rule is embodied in section 11 of the Code of Civil Procedure, 1908, which applies to proceed ings under the Parsi Marriage and Divorce Act by reason of the provisions of section 45 of the Act. This section, however, provides that the Code shall apply to proceedings under the Act only "so far as the same may be applicable". Section 45 should be read with section 35‑ of the Act. Under section 35 of the Act a statutory duty is imposed on the Matrimonial Court to decree the relief, including relief by way of divorce, if the Court is satisfied that any of the grounds set forth in section 30, 31, 32 or 34 for granting relief do exist, and that none of the grounds set forth in these sections for with holding relief are found to exist. The duty imposed on the Matrimonial Court under section 35 of the Act, is such that the principle of res judicata cannot be allowed to operate in matrimonial causes with the same rigour with which it applies to ordinary civil litigations. The Parsi Marriage and Divorce Act, 1936, bears close similarity to the English Law relating to matrimonial causes (see Matri monial Causes Acts of 1857, 1937 and 1950). . Accordingly, the decisions of the English Courts, should be of assistance in proceedings under the Parsi Marriage and Divorce Act, 1936. The English Courts have not applied the principles of estoppel by res judicata to matrimonial causes with the strictness with which this principle is applied to ordinary civil litigations. The reason for this is that in matrimonial causes public interest outweighs all other considerations and, further, a statutory duty is imposed on the matrimonial Court to satisfy itself of the existence or otherwise of the grounds for giving or withholding the matrimonial reliefs, including the relief of divorce. A similar statutory duty is imposed on the Matrimonial Court by section 35 of the Parsi Marriage and Divorce Act, 1936, which requires "that the Court shall decree . . . . . relief", if it is satisfied that any of the grounds set forth in section 30, 31, 32 or 34 for granting relief exists, and that none of the grounds set forth therein for withholding relief exists. Thus the Matrimonial Court established by the Parsi Marriage and Divorce Act is not bound by the rule of estoppel or res judicata, though this rule may apply inter partes as a rule of prudence and for the reason that the decision of a competent Court arrived at after due enquiry should be treated with the greatest respect and considera tion in subsequent litigations between the parties. But a Matrimonial Court should not treat a previous decision as binding if circumstances exist which require a de novo enquiry into the allegations and cross allegations which may have been the subject‑matter of earlier proceedings. This, as mentioned is a duty imposed on the Matrimonial Court by section 35 of the Act.

The previous proceedings between the parties were for restitution of conjugal rights, and the subsequent suit was for divorce out the ground of desertion. The nature of the two proceedings sad the subject‑matter of litigation therein being quote different the decision in previous suit would not therefore operate as estoppel by res judicata in the second suit.

Harriman v. Harriman (1909). L R P D 123; James v. James (1948) 1 A E L R 214; Hudson v. Hudson (1948) I A E I, R 773; Winnan v. Winnan (1948) 2 A E L '7 A62. Thompson v. Tkompson (1957) 1 A E L R 161; Fisher v: Fisher (1959) 3 A E L R 131 and Laws v. Laws (1963) 1 W L R 11133 ref:

Rustom F: Virjee for Petitioner.

Fakharuddin for Respondent.

Dates of hearing : 27th and 28th November 1967.

Address to the delegates: Ladies and gentlemen, the plaintiff before you is Nawzer Dhunjishaw Kheswala. He has brought a suit for divorce against his wife Khorshed, on the ground that she has deserted the plaintiff for 3 years. The suit has been filed under, the Parsi Marriage and Divorce Act, No. 111 of 1936. This Act has established a special Court entitled the Parsi District Matrimonial Court, which as required to be presided over by the Judge of the 'Principal Court of Original Civil jurisdiction in the District in which the Court is held, and under section 20, in the trial of the cases brought tinder the Act, the Judge is to be aided by 7 delegates, who acre appointed by the Provincial Government under section 24 of the Act. Ladies and gentlemen, you have been selected, out of the delegates appointed by the Provincial Government, to aid me in the trial of the present case. Under section 6 of the Act, all questions of law and procedure are to be determined by me as the Presiding Judge; but the decision on the facts shall be your decision that is, the decision which you may give unanimously, or by a majority. With regard to Parsi marriages, the Matri monial Court is given jurisdiction either to declare a marri age null and void, or to dissolve the, marriage or to grant divorce. Here the plaintiff has come for divorce on the ground of his wife's desertion, which is one of the several grounds for divorce specified in section 32 of the Act. The Matrimonial Court has also jurisdiction to grant decrees for restitution of conjugal rights under section 36 of the Act. I am referring to this section, because there were previous proceedings between the parties for restitution of conjugal rights, the decisions wherein is sought to be set up by the defendant as a bar to the present proceedings.

2. Before I sum up the specific issues which have to be decided in this case, it would be useful to give a brief history of the relationship between the parties. The plaintiff and the defendant were married at Karachi on 18th December 1960. This marriage was solemnized under the Faasi, Marriage and Divorce Act. For 4 days after the marriage, the parties stayed in Karachi and then went on a honey‑moon tour of the country, lasting a month and a half. The parties then took up their residence with the plaintiff's parents at Barjore Mansion, which is situated on the junction of Garden Road and Randle Road. After about 7 months, the defendant, being in a family way, went to live with her parents, and this, we have been told at the bar, is in accordance with the customs and usages of the Parsi community. During this period the plaintiff used to visit the wife at the residence of the latter's parents. On the 10th September 1961, the defendant gave birth to a male child, Kawasji. She stayed in the hospital for about a week, during which time, it is stated, she was attended by her mother as well as the plaintiff's mother. The defendant returned to her parent's residence on 16th September 1961. It appears that for some time thereafter the relations between the parties remained cordial, but then some differences arose between them, regarding which each party has given a different version before you. These differences even assumed a serious turn on one occasion, so that some prominent members of the Parsi Community intervened to bring about a reconciliation, which afforts, however, did not bear any fruit. The plaintiff then served the wife with a notice on 31st January 1962. The wife, however, did not return to the matrimonial home, so that the plaintiff filed a suit for restitution of conjugal rights in this Court on 27‑11‑1962 under section 36 of the Parsi Marriage and Divorce Act, the suit being registered as Divorce Petition No. 1 of 1963. This suit was tried by Mr. Justice H. T. Raymond with the assis tance of delegates, but by order recorded on 16‑4‑1963, the suit was dismissed.

3. On 11‑5‑1967 the plaintiff filed the present suit for divorce on the ground of the wife's desertion, in accordance with the provisions of section 32 (g) of the Parsi Marriage and Divorce Act, 1936. Several of the grounds taken by the plaintiff are the same on which he had brought his earlier suit for the restitution of conjugal rights. In the main, the plaintiff s contention is that the plaintiff has been deserted by the wife for at least 3 years without reasonable cause and without his consent, and against his will. The wife has repeated the defence which she adopted in the earlier proceedings, that is, she has complained of ill‑treatment at the plaintiff's hand and also on the part of his parents, and has further pleaded that the decision in the earlier proceedings operates as an estoppel by res judicata. In the present proceedings the trial commenced on 21‑11‑1967 when, ladies and gentlemen, you where selected as delegates to assist me in the adjudication of the case. On the same day, the following issues were settled with the consent of the parties :‑

(1) What is the effect of the order of this Court inn Divorce Petition No. 1 of 1963, between the parties

(2) Whether the respondent deserted the petitioner for at least three years within the meaning of section 32 (g) of the Parsi Marriage and Divorce Act, 1936

(3) Who is entitled to the custody of the child.

As I explained to you when these issues were framed, Issue No. 1 raises a question of law, which has to be decided by me as the Presiding Judge. Issue No. 2 raises questions of facts on which your decision shall be final under section 46 of the Act. Issue No. 3, which concerns the custody of the minor Kowasji, is, under section 49 of the Act, again to be determined by me as the Presiding Judge of the Parsi Matrimonial Court.

4. Before I call upon you to give your decision on Issue No. 2, I have to determine whether the decision of this Court in Divorce Petition No. 1 of 1963, operates as an estoppel by res judicata in the present proceedings, so as to preclude the plaintiff from agitating now the same grounds on which his earlier suit for restitution of conjugal rights was based. Res judicata, broadly speaking means the conclusiveness of a judgment as to the points decided in every subsequent litigation between the parties. This rule is embodied in section 11 of the Code of Civil Procedure, 1908, which applies to proceedings under the Parsi Marriage and Divorce Act by reason of the provisions of section 45 of the Act. This section, however, provides that the Code shall apply to proceedings under the Act only "so far as the same may be applicable." Section 45 should be read with section 35 of the Act, which reads as follows: < [if supportLineBreakNewLine]>

"In any suit under section 30, 31, 32 or 34, whether defended or not, if the Court be satisfied that any of the grounds set forth in those sections for granting relief exist, that none of the grounds therein set forth for withholding relief exist and that‑

"(a) the act or omission set forth in the plaint has not been condoned ;

(b) the husband and wife are not colluding together ;

(c) the plaintiff has not connived at or been accessory to the said act or omission ;

(d) (save where a definite period of limitation is provided by this Act) there has been no unnecessary or improper delay in instituting the suit ; and

(e) there is no other legal ground why relief should not be granted ;

then and in such case, but not otherwise, the Court shall decree such relief accordingly."

Thus, a statutory duty is imposed on the Matrimonial Court to decree the relief, including relief by way of divorce, if the Court is satisfied that any of the grounds set forth in section 30, 31, 32 or 34 for granting relief do exist, and that none of the grounds set forth in these sections for withholding relief are found to exist. The duty imposed on the Matrimonial Court under section 35 of the Act, in my opinion, is such that the principle of res judicata cannot be allowed to operate in matrimonial causes with the same rigour with which it applies to ordinary civil litigations. I have not been able to finds any guidance on this question from the decisions of the superior Courts in this country, or even of the superior Courts in the Indian jurisdiction. However, I have used the interval between the closure of the evidence and the commencement of the argument of counsel to consult the English Law on the subject. I find that the Parsi Marriage and Divorce Act, 1936, bears close similarity, to the English Law relating to matrimonial causes (see Matrimonial C. Causes Acts of 1857, 1937 and 1950). Accordingly, the decision of the English Courts, in my opinion, should be of assistance in resolving the first issue raised under the present proceedings. The first case to which I would refer is Hariman v. Hariman ((1909) L R P D 123, 142, 144), in which, referring to section 31 of the Matrimonial Causes Act, 1857, Fletcher Moulton L. J., observed as follows:‑

" . the relief is made dependant on the Court being satisfied on the evidence that the case of the petitioner has been proved. "Proved" here means proved as a fact, and not merely proved inter partes. Hence no 6stoppels binding the parties are necessarily sufficient to entitle a party to such relief. The Court is not bound to be satisfied of the necessary facts because the one party is estopped as against the other from denying then. Hence the production of s decree for a judicial separation on the ground of cruelty is not as a matter of law sufficient to make it the judicial duty of the Court to accept as a fact that the respondent has been guilty of such cruelty. But, although this is so the respect paid to a judicial determination of a fact between parties (which in civil actions is evidenced by its creating a binding estoppel) would, I should presume, in ordinary cases lead the Court to consider the fact of the cruelty to be adequately established by the production of the decree."

And further:

" . I do not doubt that as between the parties the ordinary doctrine of estoppel applies, as was held by the Judge. Ordinary in Finney v. Finney L R 1 P 8c M 483, but estoppel is only a rule of evidence, and the duty imposed on the judge by section 29, which emphasizes by express enactment the necessity for the Court being satisfied as required by section 31, is not restricted by any such rule. Neither the consent nor the admission of the parties justifies the Court in granting a decree, although such consent or admission is acted on continually in ordinary civil suits, and, by parity of reasoning no rule of evidence which prevents a party as against the other litigant from giving evidence of the truth can bind the Court to shut it: eyes, if it is not satisfied that all the truth is before it." .

5. In James v. James ((1948) 1 A E L R 214, 217), Lord Merriman, referring to Harriman v. Harriman, stated that the statutory duty of the Court to enquire into the truth of any matters alleged as a foundation is absolute, and proceeding further observed that :‑‑‑‑

"When it is a question of seeking to oblige a Court to decide something contrary to its own belief on the facts because some other Court has decided in the affirmative, there is the consideration that so to oblige the Court would be running contrary to the statutory duties imposed on the Court."

The question of the applicability of the rule of res judicata to matrimonial cause was again considered by Lord Merriman in Hudson v. Hudson ((1948) 1 A E L R 773), in which a Divisional Court of the Probate, Divorce and Admiralty Division armed the decision of a Court of Summary jurisdiction by which the husband was found guilty of cruelty towards his wife In a subsequent petition of the wife for divorce, the husband denied the charge of cruelty, but the wife pleaded that the husband was estopped from making this denial by virtue of the previous decision. It was held that the decision of Divisional Court did not effect an estoppel per rem judicatam but, as the Divorce Court was obliged, under section 178 of the Supreme Court of Judicature (Conso lidation) Act, 1925 (as substituted by section 4 of the Matrimonial Causes Act, 1937) to inquire, so far as possible, into the facts alleged and to satisfy itself on the evidence that the offence had been committed, it was entitled to investigate the charge by way of a contest inter partes. The next relevant case is the decision of the Court of Appeal in Winnan v. Winnan ((1948) 2 A E L R 862). In this case, the Court of Summary jurisdiction made an order for main tenance, in favour of the wife, notwithstanding the husband's plea of constructive desertion by the wife. Later, the husband brought a petition for divorce on the ground of cruelty and desertion by the wife, the charge of desertion being based on the same facts as those relied on by the husband before the Justices of the Summary Court. The Court of Appeal negatived the wife's plea of res judicata with regard to the husbands plea of constructive desertion, holding that estoppel by res judicata did not apply (i) where proceedings in a Court of Summary jurisdiction are followed by proceedings in Divorce Court and (ii) the subject of litigation in the two proceedings is not the same.

6. I would now turn to another important decision of the Court of Appeal, viz. the case of Thompson v. Thompson ((1957) 1 A E L R 161, 165, 170, 173, 174). In this case, the wife's application to the High Court for an order for maintenance had failed as her charge of cruelty was rejected. No finding against the husband, however, was given as to the husband's allegations of cruelty and desertion against the wife. Thereafter, the husband brought a petition for divorce on the ground of cruelty and charged the wife with giving false testimony in the previous proceedings. The wife denied the allegations and charged the husband with cruelty to which latter plea the husband raised the bar of its judicata. Denning, L. J. (a he, dm was) observed as follows:‑

"The husband says that the wife's allegations of cruelty were: all fought out in the maintenance proceedings; and that she is estopped from raising them again now. There is no doubt, to my mind, that, if the doctrine of res judicata applies in its full force to the Divorce Division of the High Court, the wife is so estopped. The issue of cruelty has already been the subject of litigation by the Court of competent jurisdiction, to wit, the Court which tried the wife's claim for maintenance, and the Court would not, according to the ordinary principles, permit her to open the same subject of litigation again: The question in this case is, however, whether those ordinary principles do apply to the Divorce Division. The answer is, I think, that they do apply, but subject to the important qualification that it is the statutory duty of the Divorce Court to inquire into the truth of a petition and of any counter charge which is properly before it, and no doctrine of estoppel by res judicata can abrogate that duty of the Court. The situation has been neatly summarised by saying that in the Divorce Court "estoppels bind the parties but do not bind the Court":

but this is perhaps a little too abbreviated.. The full proposi tion is that, once an issue of a matrimonial offence has been litigated between the parties and decided by a competent Court, neither party can claim as of right to re‑open the issue and litigate it all over again if the other party objects (that is what is meant by saying that estoppels bind the parties): but the Divorce Court has the right, and indeed the duty in a proper case, to re‑open the issue, or to allow either party to re‑open it, despite the objection of the other party (that is what is meant by saying that estoppels do not bind the Court). Whether the Divorce Court should re‑open the issue depends on the circumstances. If the Court is satisfied that there has already been a full and proper inquiry in the previous litigation, it will often hold that it. is not necessary to hold another inquiry all over again. But if the Court is not so satisfied, it has a right and a duty to inquire into it afresh. If the Court does decide to re‑open the matter, then there is no longer any estoppel on either party. Each can, go into the matter afresh."

In the same case Hodson, L. J. observed that in his judgment "there is no estoppel here binding the Court; the previous proceedings were not divorce proceedings, and in exercising divorce jurisdiction the Court is not bound by the ordinary rules of estoppel. This has been recognized since the decision of Harriman (1909) Probate 123)." The following passage from, the judgment of Moris, L. J., in the same case has important bearing on the issue of res judicata.

" . . In ordinary litigation a party may be defeated by a plea of res judicata. If in a suit it can be shown that the precise dispute between the parties has already been adjudi cated on in an earlier suit between the same parties where the same dispute was also in issue as a basis for relief‑then there may be successful plea of res judicata. An estoppel may also arise even if in successive suits between the same parties the causes of action are different, if it can be plainly shown that a precise point was a direct issue in the first suit and was decided. These principles are, I think, of general application and may apply in matrimonial proceedings; but is matrimonial proceedings they cannot apply so as to absolve the Court from duties statutorily imposed or so as to bring about any alteration of status not otherwise warranted and directed."

And further:

"It seems to me that reason and authority alike show that the special directions and obligations imposed by statute on the matrimonial Courts are not to be avoided merely because as between the parties themselves a plea of estoppel might otherwise be raised. The reasons for this are apparent. Matrimonial Courts which deal with the status of parties have jurisdiction which is to be exercised in strict conformity with the statutory codes enacted by Parliament. Respect for the law and other features of the public interest require that there should neither be side‑stepping of the obligations of proving a charge which is preferred nor a denial of a right to prefer a new claim for relief if the subject of litigation differs from that in some previous proceedings."

7. Another case of which notice should be taken is Fisher are Fisher ((1959) 3 A E L R 131), which was also decided by the Court of Appeal in this case the wife left the husband in 1954. The husband petitioned for nullity of marriage and the wife by an answer sought a divorce on the ground of cruelty. Neither party, however, was granted a decree. In 1957, three years after the wife had left him, the husband petitioned for divorce on the ground of desertion; the wife denied desertion and cross‑prayed for a decree on the ground of the husband's constructive desertion and in support of her case sought to give evidence of the same matters as she had put forward in support of her allegation of cruelty in the previous suit. It was held that the wife was not estopped from litigating same matters on which her previous allegation of cruelty was based as the rule of estoppel could not be invoked as the subjects of litigation in the two suits, viz. constructive desertion in the second suit and cruelty in the former suit, were not the same, I would lastly refer to the case of Laws v. Laws ((1963) 1 W L R 1133). 1n this case, the wife petitioned for restitution of conjugal rights. As the husband failed to defend, an order was made by which he was required to return to the wife within 28 days. The husband did not comply with the order, and the wife subsequently petitioned for a decree for judicial separation on the ground of non compliance. The husband replied by taking out the summons alleging cruelty on the wife's part prior to their separation and made a cross‑prayer for decree of dissolution of marriage. The summons were dismissed by the Registrar, but on appeal Payne. J made an order, which was maintained by the Court of Appeal, in the tests of the husband's summons and rejected the wife's plea that the husband should have alleged cruelty in the restitu tion proceedings and having not done so, he was estopped from pleading cruelty in separation proceedings, the Court further holding, firstly, that the issues which the Court had to decide in the restitution suit were different from the issues which the Court had to decide in the suit for judicial separation, and that the duty of the Court in the two suits was quite different as entirely different considerations arise in suits for restitution of conjugal rights and suits for judicial separation, secondly, that the principles of res judicata would not apply because the previous judgment was by default.

8. Thus the English Courts have not applied the principle of estoppel by res judicata to matrimonial causes with the strictness with which this principle is applied to ordinary civil' litigations. The reason for this is that in matrimonial causes public interest outweighs all other considerations and, further, a statutory duty is imposed on the matrimonial Court to satisfy itself of the existence or otherwise of the grounds for giving or withholding the matrimonial reliefs‑ including the relief of divorce. A similar statutory duty is imposed on this Matri monial Court by section 35 of the Parsi Marriage and' Divorce Act 1936, which requires "that the Court shall decree . . . . relief." if it is satisfied that any of the grounds set forth in section 30, 31, 32, or 34 for granting relief exists, and that none of the grounds set forth therein for withholding relief exists. Thus the Matrimonial Court established by the Parsi Marriage and Divorce Act is not bound by the rule of estoppel or nee judicata, though this rule may apply. Inter parties as a rule of prudence and for the reason that the decision of a competent Court arrived at after due enquiry should be treated with the greatest respect and consideration in subsequent litigations between the parties. But a Matrimonial Court should not treat a previous decision: as binding if circumstances exist which require a de novo enquiry into the allegations and cross allegations which may have been the subject‑matter of earlier proceedings. This, as I have said, is a duty imposed on the Matrimonial Court by section 35 of the Act. Turning to the facts of the present case, it has been noted that previous proceedings between the parties, were for restitution of conjugal rights, and the present suit is for divorce on the ground of desertion. The nature of the two proceedings and the subject- matter of litigation therein are quite different. The decision in Divorce Petition No. 1 of 1963 would not therefore operate as estoppel by res judicata in the present case. The further ground for rejecting the plea of estoppel or res judicata is that in the previous proceedings, the ground of desertion was neither raised nor was available to the plaintiff. Under section 32 (g) of the Parsi Marriage and Divorce Act, 1936, the minimum period of desertion to maintain an action for divorce is 3 years. The parties were married on 18th December 1960, and the first case was presented in this Court on 27th November 1962. At that time, the plaintiff could not take up the ground of desertion by the wife. I therefore hold that the decision in Divorce Petition No. 1 of 1963, does not operate as estoppel or res judicata in the present proceedings.

9. Ladies and gentlemen, now I come to the second issue and it raises questions of fact on which your decision should be final. The ground on which the plaintiff seeks divorce is desertion by wife under section 32 (g), read with section 2 (iii) of the Parsi Marriage and Divorce Act. The plaintiff who seeks divorce on this ground has to prove‑---

(i) that the plaintiff has been deserted by the defendant for at least 3 years.

(ii) that this desertion is against the consent or will of the plaintiff and without reasonable cause.

Therefore, you will have to decide whether the defendant has stayed away from the plaintiff for the statutory period of 3 years, or is still staying away, without the plaintiff's con sent and without there being any reasonable cause. Both the parties have led evidence before you, which evidence you have heard, as I have noted, with great attention and interest. I have held under Issue No. 1 that the decision in the previous proceedings is not a bar to the maintenance of the present suit. Therefore, you have to consider the case now before you independently of the previous proceedings. You have to consider whether the defendant has good cause for staying away from her husband, and that if she had good cause up to 16‑4‑1963, when the order in the previous proceedings was recorded, whether after lapse of such considerable period, this cause is still available to her so as to justify her to continue to stay away from the plaintiff. In this connection the plaintiff's conduct since the date of the first order would also be relevant. You should consider whether there has been anything in the plaintiff's conduct which should cause apprehensions to the defendant, apprehensions of the kind which were held in the previous proceedings sufficient to refuse to the plaintiff the relief of restitution :of conjugal rights. However, the matter is left to your decision and it is for you to come to a determina tion whether the marriage between the parties should continue or whether the plaintiff should be granted the relief of divorce. You are at liberty to discuss the matter between you, and after deliberations you may communicate your decision to me through your spokesmen.

10. The delegates, through their spokesmen, namely, Mr. Edulji N. Randeria, have given the opinion that the defendant is guilty of desertion. I accept this opinion and accordingly dissolve the marriage between the parties under section 35 of the Parsi Marriage and Divorce Act, 1936, and grant divorce to the plaintiff. A copy of this decree shall be sent for registration to the Registrar of Marriages, appointed under section 7 of the Parsi Marriage and Divorce Act, 1936, who will thereupon act in accordance with the provisions of section 10 of the Act.

11. The third issue is with regard to the custody of the child, Kawasji, which, under section 49 of the Parsi Marriage and Divorce Act, is to be decided by the Presiding Judge of the

Matrimonial Court. Both Mr. Rustum F. Virji, the learned Advocate for the plaintiff, and Mr. Fakhuruddin, the learned Advocate for the defendant, desire that arguments on this question be postponed to Friday the 9th February 1968, which request is accepted and order is made accordingly. The defendant is directed to produce the child Kawasji in Court on this date at 8‑45 a. m.

K. B. A.

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